Senators Clash With Nominee Over Torture and Limits of Law

By PHILIP SHENON

Published: October 19, 2007

President Bush's nominee for attorney general, Michael B. Mukasey, declined Thursday to say if he considered harsh interrogation techniques like waterboarding, which simulates drowning, to constitute torture or to be illegal if used on terrorism suspects.

On the second day of confirmation hearings before the Senate Judiciary Committee, Mr. Mukasey went further than he had the day before in arguing that the White House had constitutional authority to act beyond the limits of laws enacted by Congress, especially when it came to national defense.

He suggested that both the administration's program of eavesdropping without warrants and its use of ''enhanced'' interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president's authority as commander in chief might allow him to supersede laws written by Congress.

The tone of questioning was far more aggressive than on Wednesday, the first day of the hearings, as Mr. Mukasey, a retired federal judge, was challenged by Democrats who pressed him for his views on President Bush's disputed antiterrorism policies.

In the case of the eavesdropping program, Mr. Mukasey suggested that the president might have acted appropriately under his constitutional powers in ordering the surveillance without court approval even if federal law would appear to require a warrant.

''The president is not putting somebody above the law; the president is putting somebody within the law,'' said Mr. Mukasey, who seemed uncomfortable with the aggressive tone, occasionally stumbling in his responses. ''The president doesn't stand above the law. But the law emphatically includes the Constitution.''

The remarks about the eavesdropping program drew criticism from the committee's chairman, Senator Patrick J. Leahy, Democrat of Vermont, who told Mr. Mukasey that he was troubled by his answer, adding, ''I see a loophole big enough to drive a truck through.''

The questioning by the Democrats was tougher still regarding Mr. Mukasey's views on presidential authority to order harsh interrogation techniques on terrorist suspects, including waterboarding, which was used by the C.I.A. on some of those who were captured and held in the agency's secret prisons after the Sept. 11 terror attacks.

''Is waterboarding constitutional?'' Mr. Mukasey was asked by Senator Sheldon Whitehouse, Democrat of Rhode Island, in one of the sharpest exchanges.

''I don't know what is involved in the technique,'' Mr. Mukasey replied. ''If waterboarding is torture, torture is not constitutional.''

Mr. Whitehouse described Mr. Mukasey's response as a ''massive hedge'' since the nominee refused to be drawn into a conversation about whether waterboarding amounted to torture; many lawmakers from both parties, as well as civil liberties and human rights groups, have said it is clearly a form of torture. The administration has suggested that it ended the practice after protests from Capitol Hill and elsewhere, although it has never said so explicitly.

''I mean, either it is or it isn't,'' Mr. Whitehouse continued.

Waterboarding, he said, ''is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning. Is that constitutional?''

Mr. Mukasey again demurred, saying, ''If it amounts to torture, it is not constitutional.''

Mr. Whitehouse said he was ''very disappointed in that answer; I think it is purely semantic.''

''I'm sorry,'' Mr. Mukasey replied.

While Mr. Mukasey still seemed almost certain to win Senate confirmation, a vote in the Judiciary Committee could be delayed until he provides written answers to questions raised Thursday by Mr. Leahy. The senator said he did not intend to hold the vote until after the responses were received and reviewed.

The committee's ranking Republican, Senator Arlen Specter of Pennsylvania, said that while he shared some of Democrats' concerns about Mr. Mukasey's views on the limits of presidential authority, ''I think you are virtually certain to be confirmed, and we're glad to see the appointment and glad to see somebody who is strong, with a strong record, take over this department.''

Other Republicans joined in the praise. ''I've listened to your testimony here, and it seems to me that you are extraordinarily well-suited for this position, pretty much as well as anybody who hasn't served in the position before could be,'' said Senator Jon Kyl of Arizona.

Among the Democrats, Mr. Leahy was especially critical of Mr. Mukasey, wondering aloud whether he had been pressured overnight by the White House to defend the administration's view of its expanded powers in dealing with terrorist threats.

''In your answers yesterday, there was a very bright line on questions of torture and the ability of an executive, or inability of an executive, to ignore the law,'' Mr. Leahy said. ''That seems nowhere near as bright a line today, and maybe I just don't understand.''

''I don't know whether you received some criticism from anybody in the administration last night after your testimony,'' he said, ''but I sensed a difference, and a number of people here, Republican and Democratic alike, have sensed a difference.''

Mr. Mukasey insisted there had been no pressure from the White House on Wednesday, saying, ''I received no criticism.''

PHOTO: Though Michael B. Mukasey had a rocky day yesterday, his confirmation was called probable. (PHOTOGRAPH BY STEFAN ZAKLIN/EUROPEAN PRESSPHOTO AGENCY) (pg.A22)
CHART: In His Own words. President Bush's nominee for attorney general, Michael B. Mukasey, at yestareday's Senate Judiciary Committee hearing.